Dodson v. Dean
Decision Date | 19 June 2002 |
Docket Number | No. A02A0417.,A02A0417. |
Citation | 567 S.E.2d 348,256 Ga. App. 4 |
Court | Georgia Court of Appeals |
Parties | DODSON v. DEAN. |
OPINION TEXT STARTS HERE
Luann M. Evans, Marietta, for appellant.
Michael E. McLaughlin, Gilder H. Howard, Sr., Marietta, for appellee.
This appeal originated from a divorce action between Thomas A. Dean and Diane Dodson filed in the Superior Court of Cherokee County. Before the final divorce hearing, the parties moved to recuse the trial judge on the basis that Dodson's attorney had a lawsuit pending against the judge. The judge denied the motion, ruling that it was untimely and that the affidavit was insufficient. We granted Dodson's application for interlocutory appeal, and for reasons that follow, we affirm.
The record shows that, on May 31, 2001, the trial court entered a rule nisi scheduling the final divorce hearing for July 16, 2001. On July 11, 2001, the parties filed a "Joint Motion for Disqualification and Recusal" of the trial judge, the Honorable Frank C. Mills III, and all the other judges of the Superior Court of Cherokee County. Attached to the motion is an unnotarized pleading that purports to be an "affidavit" and brief supporting the motion.
The pleading states in relevant part that Dodson's attorney, Luann Evans, had filed a civil action in the Cherokee County Superior Court "seeking a declaration that the Family Court as set up by [Judge Mills] is unconstitutional and illegally constituted [and] that [Judge Mills] has violated the Georgia Constitution." The pleading further alleges that Judge Mills Dodson also sought to disqualify the remaining superior court judges on the ground that her counsel had also accused them of illegally holding their positions.1 The trial judge denied the motion, concluding that it was untimely filed and that there was no affidavit attached. We find no error in this ruling.
However, "[i]f all three conditions precedent set forth in USCR 25.3 are not met, the trial judge shall deny the motion on its face as insufficient, and there is no need for the trial judge to assign the motion to another judge to hear."3
In this case, it is clear that Dodson's motion did not meet all three conditions precedent. Dodson acknowledges in her appellate brief that counsel filed the complaint against Judge Mills on June 8, 2001.4 Dodson's disqualification motion, filed July 11, was untimely because it was not filed within five days after she learned of these grounds, and it was filed later than ten days before the July 16 final hearing.5 Although Dodson contends that the judge should have nevertheless recused himself sua sponte, this does not explain her delay in moving for disqualification pursuant to the Uniform Superior Court Rules.
Accordingly, the lack of an attestation rendered the affidavit legally insufficient.8
Finally, Dodson asserts that, despite the deficiencies, the trial judge should have recused himself sua sponte under Canon 3(E) of the Code of Judicial Conduct. Canon 3(E)(1) generally requires judges to "disqualify themselves in any proceeding in which their impartiality might reasonably be questioned." Subsections (a) through (c) of Canon 3(E)(1) enumerate specific instances where disqualification is required. Dodson merely asserts that Judge Mills should have acted sua sponte because his "impartiality can be and was reasonably questioned." However, Dodson cites no authority requiring sua sponte recusal under this standard, and we have generally ruled that such self-enforcement is not required.9
Furthermore, although self-enforcement may be required where the reason for recusal is based on one of the specific instances enumerated in subsections (a) through (c), Dodson has not shown that any of those instances apply in this case.10 Among the circumstances addressed in these subsections, the only one that could conceivably apply would arise where "the judge has a personal bias or prejudice concerning a party or a party's lawyer."11 But Dodson has pointed to no evidence that the trial judge harbored any such bias or prejudice against her attorney, and the court's order reflects that the "judge in his own mind ... considered the issue of recusal and [found] no reason to do so." Accordingly, we find no error.
Judgment affirmed.
1. In her appellate brief, Dodson states that counsel's lawsuit alleged that Judge Mills "consciously abused his judicial power, and acted unethically and improperly," and...
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